Adoption is the legal process that constructs a parent/child relationship between an adult and child, who might not be related by blood. “There are three sets of participants in an adoption: the petitioners (the adoptive parents, who are seeking to adopt the child); the child to be adopted; and the birth parents (the biological parents of the child to be adopted).”1 The adoption process serves to create a legal relationship between the adoptive parent and child and sever any legal right of the biological parents.2 There may be several reasons why a parent may choose to put their child up for adoption. In Missouri, “the law requires those seeking to adopt must be of good moral character and must possess the ability to care for, maintain and educate the child.”3 Throughout the adoption process, the state’s primary goal is to ensure the welfare and best interest of child are being served.
A. Adoption Law
In Missouri, adoptions are governed by state statute and person seeking to adopt must adhere to the state statute. However, procedural steps are different depending on the city or county.4 Therefore, it is highly advised to seek an attorney who practices adoption law in the city or county in which you wish to file. “Failure to conform to the local law and procedures may result in delays or the court’s refusal to allow the adoption.”5
The petitioner must file a petition in family or juvenile court. The petitioner may choose to file the petition in the county (1) where the petitioner lives; (2) the child sought to be adopted was born; (3) the county where the child is currently residing at the time of the filing; or (4) where the birth parents resides.6 Missouri takes critical steps to secure and protect the privacy of everyone involved in the adoption process. Missouri, by law, has restricted the access to adoption records from the public. Additionally, “there are legal restrictions on an adopted adult’s ability to seek information regarding his or her biological parents. These procedures are another effort to protect the identity of the biological parents who have placed their child for adoption and may not wish to be tracked down by the child at a later date.”7
i. Adoptive Process
Every adoption is unique, but there are certain procedure steps that must be followed in Missouri. In Missouri, “a child may be placed for adoption by the child’s parents, the Children’s Division, a licensed adoption agency, or by an attorney, physician or clergyman. No transfer of actual custody can take place without prior court approval.”8 The adoption process in Missouri is a two-part process. First, the legal custody of the child to the adoptive parents takes place. The birth parent may relinquish parental rights, allowing the child to be adopted. Missouri requires that a child be at least 48 hours old before consent, to relinquish rights, be considered valid.9 Once the court accepts the relinquishing of rights, the biological parent many not revoke their consent.10 Before the child is placed in the adoptive parent’s home, Missouri requires a licensed social worker to conduct a home assessment of the potential adoptive parents’ residence. “Before the court enters a final decree of adoption, the adoptive parents must have had lawful and actual custody of the child for a period of at least six months. At the conclusion of the six- month period, a final adoption hearing is held. At this hearing, the court determines whether it is fitting and proper that the adoption be allowed. Again, the social worker that conducted the home study will be required to make a recommendation to the court. When the court finds that all legal requirements have been met, a judgment of adoption is entered.”11
453.030. (Amended Aug. 28, 2013) Approval of court required–how obtained, consent of child and parent required, when–validity of consent– withdrawal of consent–duty of judge–forms, developed by department, contents, court appointment of attorney, when
1. In all cases the approval of the court of the adoption shall be required and such approval shall be given or withheld as the welfare of the person sought to be adopted may, in the opinion of the court, demand.
2. The written consent of the person to be adopted shall be required in all cases where the person sought to be adopted is fourteen years of age or older, except where the court finds that such child has not sufficient mental capacity to give the same. In a case involving a child under fourteen years of age, the guardian ad litem shall ascertain the child’s wishes and feelings about his or her adoption by conducting an interview or interviews with the child, if appropriate based on the child’s age and maturity level, which shall be considered by the court as a factor in determining if the adoption is in the child’s best interests.
3. With the exceptions specifically enumerated in section 453.040, when the person sought to be adopted is under the age of eighteen years, the written consent of the following persons shall be required and filed in and made a part of the files and record of the proceeding:
(1) The mother of the child; and (2) Only the man who:
(a) Is presumed to be the father pursuant to the subdivision (1), (2), or (3) of subsection 1 of section 210.822; or
(b) Has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child and has served a copy of the petition on the mother in accordance with section 506.100; or
(c) Filed with the putative father registry pursuant to section 192.016 a notice of intent to claim paternity or an acknowledgment of paternity either prior to or within fifteen days after the child’s birth, and has filed an action to establish his paternity in a court of competent jurisdiction no later than fifteen days after the birth of the child; or
(3) The child’s current adoptive parents or other legally recognized mother and father. Upon request by the petitioner and within one business day of such request, the clerk of the local court shall verify whether such written consents have been filed with the court.
4. The written consent required in subdivisions (2) and (3) of subsection 3 of this section may be executed before or after the commencement of the adoption proceedings, and shall be executed in front of a judge or acknowledged before a notary public. If consent is executed in front of a judge, it shall be the duty of the judge to advise the consenting birth parent of the consequences of the consent. In lieu of such acknowledgment, the signature of the person giving such written consent shall be witnessed by the signatures of at least two adult persons whose signatures and addresses shall be plainly written thereon. The two adult witnesses shall not be the prospective adoptive parents or any attorney representing a party to the adoption proceeding. The notary public or witnesses shall verify the identity of the party signing the consent.
5. The written consent required in subdivision (1) of subsection 3 of this section by the birth parent shall not be executed anytime before the child is forty-eight hours old. Such written consent shall be executed in front of a judge or acknowledged before a notary public. If consent is executed in front of a judge, it shall be the duty of the judge to advise the consenting party of the consequences of the consent. In lieu of such acknowledgment, the signature of the person giving such written consent shall be witnessed by the signatures of at least two adult persons who are present at the execution whose signatures and addresses shall be plainly written thereon and who determine and certify that the consent is knowingly and freely given. The two adult witnesses shall not be the prospective adoptive parents or any attorney representing a party to the adoption proceeding. The notary public or witnesses shall verify the identity of the party signing the consent.
6. A consent is final when executed, unless the consenting party, prior to a final decree of adoption, alleges and proves by clear and convincing evidence that the consent was not freely and voluntarily given. The burden of proving the consent was not freely and voluntarily given shall rest with the consenting party. Consents in all cases shall have been executed not more than six months prior to the date the petition for adoption is filed.
7. A consent form shall be developed through rules and regulations promulgated by the department of social services. No rule or portion of a rule promulgated under the authority of this section shall become effective unless it has been promulgated pursuant to the provisions of chapter 536. If a written consent is obtained after August 28, 1997, but prior to the development of a consent form by the department and the written consent complies with the provisions of subsection 8 of this section, such written consent shall be deemed valid.
8. However, the consent form must specify that:
(1) The birth parent understands the importance of identifying all possible fathers of the child and may provide the names of all such persons; and
(2) The birth parent understands that if he denies paternity, but consents to the adoption, he waives any future interest in the child.
9. The written consent to adoption required by subsection 3 and executed through procedures set forth in subsection 5 of this section shall be valid and effective even though the parent consenting was under eighteen years of age, if such parent was represented by a guardian ad litem, at the time of the execution thereof.
10. Where the person sought to be adopted is eighteen years of age or older, his or her written consent alone to his or her adoption shall be sufficient.
11. A birth parent, including a birth parent less than eighteen years of age, shall have the right to legal representation and payment of any reasonable legal fees incurred throughout the adoption process. In addition, the court may appoint an attorney to represent a birth parent if:
(1) A birth parent requests representation;
(2) The court finds that hiring an attorney to represent such birth parent would cause a financial hardship for the birth parent; and
(3) The birth parent is not already represented by counsel.
12. Except in cases where the court determines that the adoptive parents are unable to pay reasonable attorney fees and appoints pro bono counsel for the birth parents, the court shall order the costs of the attorney fees incurred pursuant to subsection 11 of this section to be paid by the prospective adoptive parents or the child-placing agency.
If a birth parent does not consent to the adoption, adoptive parents would have to prove the consent is not required because one of the following exists:
1. The birth parent’s rights have previously been terminated;
2. The birth parent has previously consented to the future adoption of a child;
3. The birth parent’s identity is unknown and cannot be ascertained;
4. A man who has not been established as the father denies paternity;
5. After proper service, the birth parent is in default;
6. The birth parent has a permanent and incurable medical condition that renders the parent unable to provide care for the child; or
7. The birth parent has, for a period of six months, abandoned or neglected the child who is one year of age or older (this period is 60 days if a child is less than one year of age).12
B. Who Can Adopt
Missouri provides potential parents several avenues in adopting. Potential parents can choose to work with an independent or private agency, and adopt either domestically or internationally. Additionally, Missouri statutes address when a stepparent, relative, and foster parents are allowed to adopt.
“The most common type of adoption is that in which a stepparent seeks to adopt the child or children of their current spouse. For example, this may occur when the natural parent remarries after the death of their former spouse or after a divorce where the other natural parent is willing to consent (agree) to the adoption. A similar situation may arise when a child is born out of wedlock and the natural parent later marries, with the stepparent desiring to adopt the child. These are known as stepparent adoptions”.13
When advising clients concerning the “pros” of such adoptions, counsel should explain that a formal adoption will:
1. Assure the parent-child relationship will not be severed should the biological parent die,
2. Establish legal parental rights, i.e., the ability to sign driver’s license application forms and medical consent forms, and
3. Clarify inheritance rights.14
“Inasmuch as the domestic relations practitioner-perhaps more so than any other type of attorney-is a counselor in the true sense of the word, he or she must take care to advise the parties of the possible drawbacks to an adoption of this type. First, these children may feel that the adoption requires them to give up their relationship with the “non-adopting” biological parent.5 As such, practitioners should point out to the adoptive parents that, rather than create the close-knit family that they desire, the process may instead produce resentment and conflict.”15
If, after careful consideration, parties still feel that adoption is the alternative, the first step in most cases is to obtain both parents’ consent to the adoption. Obviously, since one of the parties seeking the adoption is a birth parent, that person’s consent is not a problem. If, however, the other birth parent opposes the adoption, the order cannot be granted unless the situation falls within one of the following exceptions under Section 453.040 for which consent is not required:
1. A parent whose rights with reference to the child have been terminated pursuant to law;
2. A parent of a child who has waived the necessity of his or her consent to a future adoption of the child;
3. A parent who has a mental condition that is shown by competent evidence to be either permanent or such that there is no reasonable likelihood that the condition, which renders the parent unable to knowingly provide the child the necessary care, custody, and control, can be reversed; and
4. A parent who has for a period of at least six months, for a child one year of age or older, or at least 60 days, for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially, and continuously neglected to provide the child with necessary care and protection.
In Missouri, a stepparent is considered the spouse of the natural or adoptive parent of the stepchild. Over the last few decades, the family dynamic has dramatically changed but stepparents still have fewer rights than legal guardians and foster parents. The United States law has consistently disregarded stepparents’ roles, obligations, and rights in regards to stepchildren. “Stepparents have no obligation during the marriage to support their stepchildren, even while they have an obligation to support their spouse, the child’s parent. Nor do stepparents have any right of custody or control. If the marriage terminates through divorce or death, they most often have no rights of custody or visitation, no matter how longstanding their stepparent role.”16
The law restricts rights to the biological parent and the adoptive parent. “Stepparents are viewed as a major category of third parties who develop relationships with their stepchildren but are not regarded as legal parents. When the custodial parent of a minor child marries another adult who is not the child’s biological or adoptive parent, that is when a residential stepparent- stepchild relationship is created, but there is not definitive definition of the stepparent status.”17 An example of a statute that imposes a child support duty on a stepparent is Vermont, which requires, “a stepparent has a duty to support a stepchild if they reside in the same household and if the financial resources of the natural or adoptive parents are insufficient to provide the child with a reasonable subsistence consistent with decency and health. The duty of a stepparent to support a stepchild under this section shall be coextensive with and enforceable according to the same term as the duty of a natural or adoptive parent to support a natural or adoptive child including any such duty of support as exists under the common law of this state, for so long as the marital bond creating the step relationship shall continue.”18 The adoption process is the same for a stepparent. For the purposes of a stepparent adoption, lawful custody is deemed to begin with the marriage of the parents. The parents must be married for at least six months prior to the granting of the stepparent adoption.19
a. Relevant Cases
The Missouri Court of Appeal in In re the Matter of A.L.H, addressed the issue of terminating the natural parent’s rights. The natural father seeks an appeal terminating his parental rights and allowing his former wife and her new husband to adopt his daughter.20 The court found father had willfully abandoned and neglected daughter for a period of at least six months immediately and found that it was in the best interests of daughter that the adoption be approved.21 In a stepparent adoption, either willful abandonment or willful neglect of the child by the non-petitioning natural parent obviates the need for that parent’s consent to the adoption. § 453.040(5) RSMo. 1986.22 The appellate court reversed the order because there was no evidence that the natural father willfully neglected or abandoned his daughter.23
In re S.J.S, the court entered judgment permitting the adoption of S.J.S by the stepfather because the natural failed to pay child support.24 The natural father owed $38,800 in back child support.25 The natural father appealed and asserted that Missouri required a court ordered transfer of custody to the petitioner pursuant to section 453.110 and that he did not willfully neglect his child. Section 453.080 did not impose on stepparents the requirement that they have a court-ordered transfer of custody as a precondition for filing a petition for adoption; the law in Missouri regarding stepparent adoption remains unchanged.26 “Here, S.J.S. was in the lawful and actual custody of stepfather for more than six months, the statutory period under section 453.080.”27 Lastly, the court addressed the father’s assertion that he did not neglect his child. “The essence of neglect has been characterized as the failure to perform the duty with which the parent is charged by the law and by conscience.28 In stepparent adoptions, neglect frequently is shown by a failure to provide support, without just cause or excuse, whether ordered by judicial decree or not.29 A non-custodial parent’s failure to contribute to the financial support of his or her child, combined with other evidence of lack of contact, is sufficient to sustain a finding of willful neglect in failing to provide proper care and maintenance.”30 Here, the father owed $38,800 in back child support. The court affirmed the judgment.
According to Missouri Revised Statute Section 453.072.1, “a relative means any grandparent, aunt, uncle, adult sibling of the child or adult first cousin of the child, or any other person related to the child by blood or affinity.”31
There are several instances when a relative may adopt the child. Relative adoption is most common in two situations. First, the birth parents have died and named the relative, in their will, as guardian. Secondly, relative adoptions are common when the biological parent is deemed to be unfit or unable to meet the parental role. Procedurally, relative adoptions follow the same steps as in stepparent adoptions. Again, there must be a transfer of custody to the potential party seeking to adopt, and the petitioner must retain lawful custody of the child for six months prior to the adoption judgment. Attorneys should be familiar with state and local rules to ensure a smooth adoption process. Further, the attorney should explain to the relative that traditionally courts are reluctant to grant rights to relatives in adoption proceedings. “However, 1988 legislation indicates that grandparents are gaining rights insofar as visitation is concerned.13 Furthermore, careful practitioners should note that these visitation rights cannot be terminated when the child is adopted by a stepparent, another grandparent, or other blood relative.”32
It is highly important that the attorney and guardian ad litem understands the potential harms in relative adoptions. In relative adoptions, the child can be more susceptible to psychological danger and the child’s well-being harmed.
In relative adoptions, the natural grandparent, of the child, is a common relative to adopt. The Supreme Court of the United States has recognized that grandparents have certain rights, in regards to their grandchild. State legislatures recognized grandparent’s rights and implemented statutes that give grandparents limited rights, like visitation. In terms of adoption, grandparents follow the same procedure as stepparent adoptions.
The courts have addressed several concerns with grandparent adoption. First, grandparent’s age is usually older than the child’s natural parents. This raises concerns that he grandparent is unable to give the child proper care. “Advanced age is an important consideration but does not automatically disqualify a potential adoptive parent. Indeed, some grandparents with a relatively short life expectancy have been permitted to adopt their grandchildren.”33 Second, a major concern is with the grandparent’s health. With advanced age come health issues. The court will consider the grandparent’s health a major factor in awarding the adoption. “Third, a special statute may govern adoption by a grandparent and may even give the grandparents a preference in adoption. In Florida, for example, if a child who is placed for adoption has lived with a grandparent for at least six months, the grandparent is given priority in adoption.”34 Unlike Illinois, were the child lived with his grandparents for a substantial time, before the adoption. The state held that the grandparents were unable to intervene with the adoption proceedings. Lastly, the court is more likely to grant grandparent adoption if the grandparent adopt through a private adoption.
b. Relevant Case Law
In Interest of A.R.M, the natural grandmother of the child filed a petitioner for transfer of custody and adoption.35 After, the child’s natural father was convicted of second-degree murder of the child’s natural mother.36 The grandmother, petitioner, was a married woman in her late forties.37 The father contested that the adoption asserting that he did not give consent and the adoption was not in his daughter’s best interest. That statute provides that consent for adoption by a natural parent is not required where a parent abandons a child for six months or willfully, substantially and continuously neglects a child for that period of time. In the present case, the trial court found.38 Based on the evidence and the father’s on admission, the court found, “the father destroyed the bond of parent and child. In so doing, he abandoned his child by intentionally, without just cause or excuse, withholding from his daughter his presence, care, protection, maintenance and the realistic opportunity for love and filial affection.”39 The court next addressed the issue of whether the grandmother’s adoption of A.R.M was in the best interest of the child. The court found that he petitioner was the sole caregiver since the child was three and a half year old, the petitioner provided a stable home environment for the child, the child was in good health, and the child attended a good school where she maintained A and B grades.40 The court affirmed the adoption.41
In 2007, the Missouri Court of Appeals heard the case of In re K.R.J.B, where the grandparents’ petition for adoption of K.R.J.B was contested by the child’s natural mother.42 The mother challenges the juvenile court’s finding that she abandoned her child, but the mother does not challenge that she neglected her child.43 The court deferred to the juvenile court’s finding that the “mother had repeatedly and continuously failed to provide the child with adequate food, clothing, shelter or education or other care and control necessary for the child’s physical, mental or emotional health and development,” although the mother was physically and financially able to do so. Furthermore, the juvenile court set out that the mother has not provided any food, clothing, shelter or education for the child or other care necessary for the child’s physical, mental or emotional health and development for several years.”44 Additionally, the court noted that the child testified that he was bonded to his grandparents and considered them his grandparents.45 The child also testified that he did not feel a bond with his mother and the child did not want to see the mother or live with the mother.46 On several occasions, the child witnessed domestic violence in the home.47 Based on the evidence from the juvenile court, the Missouri Court of Appeals affirmed the judgment.
In Matters of B.S.R, the paternal uncle and his wife filed a petition to adopt B.S.R. B.S.R. was in an automobile accident that killed his mother and left B.S.R. mentally incapacitated and physically disabled.48 The father contested the adoption because it was granted without the father’s contest.49 “The Circuit Court of Clay County entered a judgment terminating the parental rights of the appellant based upon findings of willful abandonment and willful, substantial and continuous neglect.”50 The court addressed the father’s assertion that he did not neglect his son because he did not physically abuse or harm him. The court noted that neglect can also be deemed as the intentional failure to perform the duty imposed upon the parent by law, and intent must be shown by clear and convincing evidence.51 The court found by clear and convincing evidence the fact that the appellant failed to provide financial support for B.S.R. and failed to maintain meaningful contact with him, and therefore, he willfully neglected B.S.R.52
Children may be placed up for adoption through an agency or through independent placement. The adoption is arranged by the biological parent, in certain situations with assistance from an intermediary, and the adoptive parent. Independent adoptions do not require prior authorization from the courts. Usually, the parent will request the assistance of a lawyer, doctor, or other professional to assist with the adoption. The Missouri Statute has listed several professionals who are able to serve as intermediaries an attorney licensed under Chapter 484, RSMo.: a physician licensed under Chapter 334, RSMo; and the parent’s clergy or spiritual leader.53 “The Children’s Division of the Department of Social Services and the Department of Health and Senior Services has been mandated to promulgate rules and regulations concerning a minor’s placement for adoption.”54 Under Missouri Statute the petitioner, adoptive parents, must submit a full account of any money, anything of value, or any other consideration or transfer made to the biological parent in regards to the adoption.55 Independent adoptions are very costly because the State of Missouri permits adoptive parents to pay for pregnancy related expenses. The petitioners may have to incur the cost of hospital, medical, and physician’s expenses incurred during child birth or medical treatment for the newborn child.56 “Reasonable living expenses, including but not limited to food, shelter, utilities, transportation or clothing expenses of the birth parents and child which are within the norms of the community in which the birth mother resides.”57 “The National Adoption Information Clearinghouse (NAIC) notes that families report spending anywhere from $8,000 to $40,000 and more for an independent adoption.”58
A majority of independent adoptions are by relative or stepparent with whom the child has been living. In these situations, the adoption process is relatively simple and the causes the courts less concern. Since the child is being adopted by a relative or stepparent, the biological parent usually knows the background, habits, and experience of the potential adoptive parent. The biological parent is familiar with the relative or stepparent.
However, the remainder of independent adoptions are generally by strangers. Independent adoptions may raise great concerns for the child, the parent, and state. Many commentators advocate the use of agency placements to the exclusion of independent adoptions.
This is advocated partly because agencies provide extensive prescreening and ongoing counseling to natural and adoptive parents. These services are generally not provided in an independent adoption.59 Unlike private agency, independent adoptions do not conduct an extensive background check of the potential parents maybe because of a lack of financial resources, time, and other factors. Additionally, independent adoptions disclose the identities of both the biological and adoptive parents.60 Disclosing identities may lead to parties harassing each other.
The black market is the main concern with independent adoptions by strangers. In many of these adoptions, the potential parent has not gone through an extensive background check. Therefore, the concern is the potential parent has lied and or may have used fraudulent information. The child may end up in the black market or be trafficked. In attempt to prevent child trafficking the Missouri legislature has enacted several statutes. Under §568.175, Missouri made it “unlawful to give or receive anything of value for the execution of consent to adoption or waiver of consent for future adoption or termination of parental rights.”61
a. Relevant Case Law
In In re Baby Girl, a mother sought to withdraw her consent from an independent adoption.62 In 1990, the day the mother gave birth, the nursing director contacted the petitioner, whom they knew wanted to adopt a baby girl.63 The next day the petitioner came to the hospital with a consent form, and after 30 minutes the mother gave written consent.64 The following day the mother sought to withdraw her consent.65 On the issue of consent, the court explained the state’s interest in “providing a mechanism for the adoption of children whose parents are unable or unwilling to care for them by persons who desire that responsibility, it has an equally significant interest in regulating adoptions in order to protect the interests of the child and to prevent the black market trade of children.”66 Yet, this court agreed that in certain situations revocation of consent is justified.67 “We believe this language allows the trial court discretion to enter an order as to the continuing validity of consent and the custody of the child that it finds just in light of the facts and circumstances of the case before it. These matters must be determined on a case-by-case basis.”68
Prospective parents also have the option of using an agency to adopt a child. There are several benefits and safeguards with using an agency. For example, the agency will conduct a screening and assessment of the natural parents. Under Section 210.4861, Missouri law requires an agency to meet and maintain certain standards to keep their license.69 Ultimately, counsel is responsible for helping the client determine if independent or agency adoption is in their best interest. The Missouri Practice Series has provided guidelines to help counsel and clients.
Once the client has decided to use an agency than the same procedure are commences “The only significant change in the sequence of events is that the agency will investigate the prospective parents before they can receive the child. The agency will also provide background information on the birth parents.”70 The child will be placed with the adoptive parents after the agency has lawful custody. At this point, the adoptive parents have lawful custody, and this time period starts the nine-month statutory requirement for an adoption judgment.71
Attorneys should be aware of what kind of custody the agency has over the child. Is the custody lawful or only physical? In situation where the agency only has physical custody, the attorney should advise the agency to petition the court for a waiver of parental rights.72 Physical custody means the parents still retains the right the revoke their agreement and regain custody of their child.
a. Relevant Case Law
“New complications have arisen with respect to the proper interpretation of RSMo. § 453.110 and the actual physical transfer of custody of the child. The Missouri Court of Appeals for the Western District has held that RSMo. § 453.110 prohibit a child placing agency from transporting a child across a county line without first obtaining an order of temporary custody from the county in which the child was born.”73 In State ex rel. Koehler v. Lewis, a mother intended to give her baby up for adoption, and contacted an agency.74 The birth mother gave consent to place the newborn with an agency and the mother waived any notice of subsequent adoption proceedings.75 The agency then transported the newborn across the county line in violation of §453.110, which required the agency to file a petition with the court for transfer of custody.76 The agency argued that they were not in violation of §453.110 because the natural mother retained her rights resume custody.77 The court found evidence that the mother intended to surrender all rights and custody of the child, and believed the agency was being deceptive. The court held that the agency should have file a petition in accordance to §453.110.78
There have been instances where the biological mother claims she gave up custody, of her child, because of fraud or misrepresentation by the adoption agency. For example, In re Baby Girl P, a Spanish-speaking mother contacted an adoption to agency to arrange the adoption of her daughter.79 In June, a hearing was held were the mother acknowledges she understood by consenting to the adoption she was giving up parental rights.80 The mother filed a motion to withdraw consent and the trial court denied her motion.81 The mother contends that she only gave consent because the adoption agency misrepresented facts.82 A trial court may, in its discretion and on a showing of good cause, allow withdrawal of consent to adoption, but here the mother has failed to provide any Missouri court that has found good cause to allow withdrawal of consent.83 The court found the adoption agency did not misrepresent the adoption process. In fact, the mother was provided with an interpreter, and the court asked the mother several times if she understood.84 “We find that the judgment that E.P. was not subject to misrepresentations about her right to withdraw consent is supported by substantial evidence.”85 The court denied the mother’s appeal.86
5. Foster Parents
Foster parents are increasingly important, in the context of adoption, because foster parents are seen as excellent sources as potential adoptive parents. Foster parents cannot be assured that a child will permanently remain in their custody. “Therefore, foster parents do not have liberty or property interests which are entitled to due process protection under the Fifth or Fourteenth Amendments.”87 A welfare agency may approve the adoption as long as no other action for adoption or guardianship may be taken.88 If an adoption or guardianship is proceeding, the foster parent may lose standing in some states. Congress enacted the Adoption and Safe Families Act of 1997, to help “facilitate and expedite the placement of eligible adoptable minors in safe, nurturing, and permanent homes.”89
Some statutes have preferred foster parent adoption when the child has lived with the foster parents for an extended time and a relationship has been built. Missouri is one of those states. Under Section 453.070.7, RSMo,:
“Any adult person or persons over the age of eighteen who, as foster parent or parents, have cared for a foster child continuously for a period of nine months or more and bonding has occurred as evidenced by the positive emotional and physical interaction between the foster parent and child, may apply to such authorized agency for the placement of such child with them for the purpose of adoption if the child is eligible for adoption. The agency and court shall give preference and first consideration for adoptive placements to foster parents. However, the final determination of the propriety of the adoption of such foster child shall be within the sole discretion of the court.”90
Missouri, like most states, follow the same process in foster care adoption. The minor child must be in the actual and physical custody of the adopting parents before entry of an adoption can be awarded. Missouri has favored foster parent adoption that Missouri has made an exception to the six-month custody requirement. Under Section 453.080.1:
“The person sought to be adopted, if a child, has been in the lawful and actual custody of the petitioner for a period of at least six months prior to entry of the adoption decree; except that the six-month period may be waived if the person sought to be adopted is a child who is under the prior and continuing jurisdiction of a court pursuant to chapter 211 and the person desiring to adopt the child is the child’s current foster parent.” Lawful and actual custody” shall include a transfer of custody pursuant to the laws of this state, another state, a territory of the United States, or another country.”91
Sections 453.070.7 and 453.080.1 serve different purposes. Section 453.070.7, serves to favor foster parents when there is another competing party. Section 453.080.1, helps circumvent the time requirement when a foster parent has a long history and relationship with the child. This exception, wavier of six month custody, is not given to any other person seeking to adopt a child. This exception is only afforded to foster parents seeking to adopt.
a. Relevant Case Law
The court has found in several cases that the best interest of the child is served when the child is adopted by foster parents rather than other relatives. In re Adoption of T.J.D., the court found it was in the best interest, of four minor children, to be adopted by their foster parents, rather than the children’s natural grandfather.92 The grandfather appealed the judgment based on the best interest of the children. There are “innumerable factors exist that color this determination; as such, the best interest analysis is very fact-intensive and may turn on very subtle factors.”93 The court found that any factors favorable to grandfather did not outweigh factors favorable to the foster parents.94 Therefore, the best interest of the children would not be served if they were allowed to live with the grandfather.95
In 2002, the In re C.D.G., court found that the children’s best interest was served by being adopted by their grandparents, rather than foster parents.96 The foster parents appealed, arguing the factors did not support a finding for the grandparents. The court referenced the best interest analysis, which rests on “innumerable factors that may be considered in determining whether an adoptive placement is in the children’s best interests. (See, In re L.W.F., 818 S.W.2d 727, 734 (Mo.App.1991). With the possible exception of a strong negative factor, no one factor is determinative of the issue. As such, the best-interests analysis is very fact-intensive and may turn on very subtle factors.”97 Here, the factors showed that the grandparents’ income was higher, and there was a strong biological relationship between the children and parents.98 The court concluded that there is substantial evidence which supports the trial court’s judgment.99
In the past, Missouri families have had many barriers trying to adopt a child from out-of- state. “Among these problems were differences as to who had authority to place a child, and when that child could be placed.”100 In the 1960s, the Interstate Compact on the Placement of Children (“ICPC”) “established uniform legal and administrative procedures governing the interstate placement of children and is statutory law in all 52 member jurisdictions and a binding contract between member jurisdictions.”101 Missouri has adopted the ICPC. The ICPC does not apply to adoptions by stepparents, relatives, or “guardians when sending or bringing of the child into the other state is done by a parent or a person in the foregoing list.”102 The ICPC requires the agreement of participating states prior to interstate adoptive placement.103
How does the ICPC work? First, the person or agency is sent an ICPC Form 100A.104 This form is sent to the Compact Administrator of the receiving state. “In most cases, the form is first sent to the Compact Administrator in the sending state, who transmits it to his or her counterpart in the receiving state.”105 Next, the receiving state must make a proposal about the placement, and then notify the person in sending place that the placement “does not appear to be contrary to the interests of the child.”106 “Before the child is ever brought into Missouri, the sending agency must furnish the Interstate Compact coordinator and the receiving state with written notice of the intent to place such child, and that notice must provide as much of the identifying information about the child as possible. Such information includes:
1. Child’s name, date, and place of birth;
2. Parents’ or legal guardian’s identity and address;
3. Name and address of person, agency, or institution to or with which sending agency proposes to send, bring, or place child; and
4. Full statement of reasons for proposed action, and evidence of authority by which placement is proposed to be made.107
If there is no conflict, then the child may be sent or brought to the receiving state.108
An attorney, who is proceeding forward with an out-of-state adoption, should be familiar with the Articles in the Compact. In Missouri, the Division of Family Services is the agency responsible for following the ICPC. Practitioners should understand that not complying with any articles of the ICPC could result in a delay or denial of the adoption. Therefore, the practitioner should understand and comply with rules in both the sending and receiving state.109
a. Relevant Case Law
The Compact does not apply to guardianship or adoption by family members. In the case of In re J.L.B, the children were placed with their grandmother after being sexually abused by their father.110 Ultimately, the children’s maternal aunt and uncle were awarded guardianship, and moved the children to Utah.111 On appeal, the father argued that the court breached the ICPC when allowing the guardian to relocate the children.112 The court noted that the purpose of the ICPC is for states “to cooperate with each other in the interstate placement of children…” such that “[e]ach child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications”.113 The court found that the ICPC is not applicable in this instance because the court appointed the petitioner as the children’s guardian and granted her permission to relocate the children.114
In re Baby Girl, a mother sought to withdraw her consent from an independent adoption.115 After the baby girl was born, the potential adoptive parents immediately relocated the baby to Arkansas.116 This case presents a question as to whether the Circuit Court of Dunklin County had jurisdiction to consider custody when a child is born in the county but removed from the State in violation of § 453.110.117 The legislature intent when enacting § 453.110 was to prohibit the indiscriminate transfer of children and passing children on like chattel.118 Here, there was no appropriate transfer or custody order obtained before the child was relocated.119 The illegal removal of a child from the court’s physical jurisdiction does not divest the court of its legal jurisdiction over the child. Our holding is also mandated by Article V of the Interstate Compact on Child Placement (Compact). Under the Compact, even if the Circuit Court of Dunklin County had entered an order giving the Arkansas couple custody, it would have retained jurisdiction until an adoption or some further order as set out in the statute was decreed.”120 The case was remanded.
International adoption happens when adoptive parents become the legal parent of a child from a different nation of their own. The United States Department of States considers this kind of adoption to be an Intercountry Adoption. “Intercountry adoption is the process by which you: (1) Adopt a child from a country other than your own through permanent legal means; and (2) Bring that child to your country of residence to live with you permanently.”121
Practitioners involved in foreign adoptions should familiarize themselves with the adoption policies of the State of Missouri, The United States of America, and the country from which they are bringing the child. “Foreign adoptions must satisfy two requirements. First, the procedures of the Immigration and Naturalization Service must have been followed, or, second, the foreign country adoption must not contravene the public policy of the State of Missouri.”122 It is imperative that the practitioner follow the procedural steps in the foreign country. This will ensure a speedy adoption. Most courts will require a certified copy of an English translation of foreign documents to be filled with the foreign adoption papers.123
Under Section 453.170.2 RSMo, Missouri recognizes the foreign adoption when the adopted child has authorization to migrate from the Department of Justice and Immigrant and Naturalization Services. “When an adoption occurs in a foreign country and the adopted child has migrated to the United States with the permission of the United States Department of Justice and the United States Department of Immigration and Naturalization Services, this state shall recognize the adoption. The department of health and senior services, upon receipt of proof of adoption as required in subsection 7 of section 193.125, shall issue a birth certificate for the adopted child upon request on forms prescribed and furnished by the state registrar pursuant to section 193.125.”124
A major concern with international adoption is getting actual consent from the biological parents. In many countries, civil unrest and impoverished conditions have caused parents to place their children for adoption. “Thus, in a foreign adoption proceeding, careful practitioners should always serve process by publication, unless adequate consents have been obtained. In addition, any attorney filing a petition in a foreign adoption should make it very clear to his or her clients that without publication to the birth parents, the proposed adoptive parents are taking a chance for one year after the adoption that someone could come forward and claim the child.”125
1 Missouri Bar, Adoption (visited Feb. 06, 2015) <http://www.mobar.org/uploadedFiles/Home/Publications/Legal_Resources/Brochures_and_Booklets/Family_Law_Conference/Adoption.pdf>.
12 Missouri Bar, Adoption (visited Feb. 06, 2015) <http://www.mobar.org/uploadedFiles/Home/Publications/Legal_Resources/Brochures_and_Bo oklets/Family_Law_Conference/Adoption.pdf>.
13 Missouri Bar, Adoption (visited Feb. 06, 2015) <http://www.mobar.org/uploadedFiles/Home/Publications/Legal_Resources/Brochures_and_Bo oklets/Family_Law_Conference/Adoption.pdf>.
14 21 Mo. Prac. Family Law § 17:5 (3d ed.).
15 Visher and Visher, Legal Action is No Substitute for Genuine Relationships, 4 Fam. Advoc. 35 (Fall 1981).
16 Margaret M. Mahoney, Stepparents As Third Parties in Relation to Their Stepchildren, 40 Fam. L.Q. 81, 82 (2006).
17 Susan L. Pollet, Still A Patchwork Quilt: A Nationwide Survey of State Laws Regarding Stepparent Rights and Obligations, 48 Fam. Ct. Rev. 528, 534 (2010).
18 Vt. Stat. Ann. tit. 15, § 296 (2009).
19 Missouri Bar, Adoption (visited Feb. 06, 2015) <http://www.mobar.org/uploadedFiles/Home/Publications/Legal_Resources/Brochures_and_Booklets/Family_Law_ Conference/Adoption.pdf>.
20 In re the Matter of A.L.H., 906 S.W.2d 373, 375 (Mo. App. 1995).
23 Id. at 381.
24 In re S.J.S., 134 S.W.3d 673, 676 (Mo. App. 2004).
26 Id. at 677.
30 Id. at 678.
31 RSMo. § 453.072.1 (2014).
32 21 Mo. Prac. Family Law § 17:6 (3d ed.).
33 2 Elderlaw Advoc. Aging § 25:27 (2d ed.).
35 In Interest of A.R.M., 750 S.W.2d 86, 88 (Mo.App.1988). 36 Id.
38 Id. at 88-89.
39 Id. at 90. 40 Id. 90-91.
42 In re K.R.J.B., 228 S.W.3d 611, 619 (Mo. App. 2007).
44 Id. at 620.
48 Matter of B.S.R., 965 S.W.2d 444, 446 (Mo. App. 1998).
49 Id. at 448.
50 Id. at 447.
52 Id. at 450.
55 RSMo. § 453.075.1 (2014).
58 National Adoption Information Clearinghouse (visited Feb. 13, 2015) <https://www.childwelfare.gov/pubPDFs/s_costs.pdf>.
59 1 Leg. Rts. Child. Rev. 2D § 6:9 (2d ed.). 60 Id.
61 RSMo. § 568.175.1 (2014).
62 In re Baby Girl —, 850 S.W.2d 64, 66 (Mo. 1993). 63 Id.
66 Id. at 71.
69 RSMo. § 210.486 (2014).
70 21 Mo. Prac. Family Law § 17:8 (3d ed.).
74 State ex rel. Koehler v. Lewis, 844 S.W.2d 483, 487 (Mo. App. 1992).
77 Id. at 488.
79 In re Baby Girl P., 188 S.W.3d 6, 9 (Mo. App. 2006), opinion adopted and reinstated after retransfer (May 9, 2006).
82 Id. at 11.
85 Id. at 12.
87 2 Am. Jur. 2d Adoption § 25.
89 Pub. L. No. 105-89, 111 Stat. 2115 (1997).
90 RSMo. § 453.070.7 (2014).
91 RSMo. § 453.080.1 (2014).
92 In re Adoption of T.J.D., 186 S.W.3d 488, 490 (Mo. App. 2006).
93 Id. at 494-495.
94 Id. at 495.
96 In re C.D.G., 108 S.W.3d 669, 672 (Mo. App. 2002).
97 Id. at 677.
98 Id. at 678.
100 21 Mo. Prac. Family Law § 17:10 (3d ed.).
101 The Association of Administrators of the Interstate Compact on the Placement of Children (visited Feb. 23, 2015), <http://www.aphsa.org/content/AAICPC/en/home.html>.
102 2 Handling Child Custody, Abuse and Adoption Cases § 14:20.
110 In re J.L.B., 280 S.W.3d 147, 149 (Mo. App. 2009). 111 Id. at 150.
112 Id. at 156.
114 Id. at 159.
115 In re Baby Girl —, 850 S.W.2d 64, 66 (Mo. 1993).
117 Id. at 67.
118 Id. at 68.
120 Id. at 68-69.
121 United States Department of State, Intercountry Adoption, (visited on Feb. 27, 2015), <http://travel.state.gov/content/adoptionsabroad/en/adoption-process/what-is-intercountry- adoption.html>.
122 21 Mo. Prac. Family Law § 17:11 (3d ed.)
124 RSMo. § 453.170.2 (2014).